Sri Madana Gopalaswamy Temple and Others vs Saride Manikyam and Others

Viswanatha Sastri, J.—These two appeals arise out of O. S. No. 65 of 1949 and O. S. No. 72 of .1950 on the file of the Court .of the Subordinate Judge of Eluru. O. S. No. 65 of 1949 was filed on behalf of Sri Madana Gopalaswa-myvaru of Ballipadu by its. Executive Officer for a declaration of the title of the Plaintiffs and recovery of possession of 19 acres, 85 cents of land from the possession of Defendants 1 to 5 who claim a right to the possession and enjoyment of the lands as remuneration for rendering decades service in the temple and from the tenants Defendants 6 to;14.

This suit was dismissed by the Court below. O. S. No. 72 of 1950 was filed by four Plaintiffs (Defendants 1 to. 3 and 5 in O.S. No. 65 of 1949) against the Executive Officer for recovery of Rs. 360 being the value of the produce>of lands alleged to be payable to the Plaintiffs but unlawfully collected by the Defendant.. This suit; was substantially decreed by the Court below. The deity represented by the Executive Officer is the Appellant from the decree in the two suits which were, decided by a common judgment. In. this judgment the parties will be referred to by their ranks in O. S. No. 65,of 1949.

It may be stated at outset that the Defendants admit that the title to the lands in dispute vests in tire deity. The case of the Plaintiff is that Defendants 1 and 2 were engaged on a contractual basis for doing deadest (dancing) service in the temple for such period as the Plaintiff might require and as wages or remuneration for such service, Defendants. 1 and 2 were permitted to enjoy the income of the lands in suit. The Plaintiff gave a notice, dated 12th August 1947, to Defendants 1 and 2 dispensing with their services and calling upon them to deliver possession of the lands. When they declined to do so, the Plaintiff filed O.''P. No. 3 of 1948 u/s 78 of the Madras Hindu Religious Endowments Act for recovery of possession of the lands but the Court dismissed the petition on a wrong view of the Jaw. Hence the present suit.

Defendants 1 and 2 as well as Defendants 3 to 5 who claim to be members of their families filed a written statement alleging that they and their ancestors were doing dancing service in the temple hereditarily from time immemorial and that their services were remunerated by the possession and enjoyment of the suit lands "beyond the memory of man They further pleaded that their service was not terminable at the pleasure of the Plaintiff and they could not be removed from service so long as they performed it satisfactorily.

Though dancing service in temples was abolished by recent legislation, the Defendants 1 to 5,were entitled to be in possession of the lands an3 enjoyment of their income till appropriate proceedings were taken for recovering possession of the lands. The Defendants also pleaded that the adverse order in O. P. No. 3 of 1948 was a bar to the maintainability of the suit.

The Court below arrived at the conclusion that the suit lands were devadasd service inam lands, that this position had been accepted by the temple managers throughout; that Defendants 1 and 2 and the other members of their families were the present holders of the service inam; that the suit for recovery of possession of the inam lands was barred by reason of the adverse order of the District Court in O. P. No. 3 of 1948 filed by the Plaintiff u/s 78 of Madras Act II of 1927, and that the Plaintiff had to get the rent fixed u/s 44A (2) of Act II of 1927 without seeking to recover possession of the inam lands. The correctness of these findings was challenged on behalf of the Executive Officer, the Appellant.

As often happens in these cases, the inam register furnishes the most authentic account of the tenure of the lands. Exhibit A-l, dated 27th September, 1859, is the extract from the inam register. In col. 2 the inam is described as "dharmadayam" and in col. 3 its extent is given as 96 acres. In col. 8 the entry is "for the offerings to the deity. Service is regularly performed" and in col. 10, the entry is "permanent so long as the service is regularly, performed". The name of the grantor or the original grantee was not known and no deed of grant was forthcoming. In the accounts of faslis 1203, 1208 and 1217 as well as in the accounts of fusli 1234, Sri Gopalaswami Varu''s name was entered as the owner of the lands. Under the heading "Particulars of the present owner", the entry is "Ballipadu, the same deity Manager Pemmaraju Lakshminarasayya''''. In column 21, the entry is as follows:

The inam being of an older date than fifty years can be confirmed permanently so long as the services are regularly performed. In fasli 1208, there are only not putties entered but in that of fasli 1217 and since there are 12. The whole is entered in the name of the deity, but the particulars of enjoyment'' as shown by the latest accounts and corroborated by old accounts are as follows:

P.T.M. (P. stands for putties and T. for tooms). 3-05-0 For the daily offering to the deity enjoyed by the worshippers Appalacharyulu, etc. 2-07-8 For oil required during festivals under the management of the trustees. 1-10-0 For the annual festival under the trustee. 0-10-0 For "Stanachari Sri Venkateswarlu, etc.''* 0-10-0 For the singer. 0-05-0 For the gardener. 1-00-0 For the barber. 2-? 12-8 For the musicians. 2-00-0 For the dancing girls.

12-00-0 It is convenient to give the title deed in the name of the deity. 9th September, 1859. (Signed) P. Chent sala Rao. Deputy Collector. On 27th September, 1859 the Inam Commissioner confirmed the inam ''to the manager for the time being of the pagoda in one deed."

It was argued for the Defendants that the extent of two putties or 16 acres allotted ''"for the daring girls" was a devadasd service inam granted to the predecessors of Defendants 1-5 and that the inam was recognised by the Government in 1859, though for the sake of convenience, a single title deed was issued in the name of the deity for whose benefit the services enumerated in column 21 of"Exhibit A-l were rendered. There is nothing in Exhibit A-l to show who were the persons who were rendering devadasi service in 1859. It is, however, clear from the evidence that Defendants 1 to 5 are not the descendants of those who were rendering service in 1859 and that the office is not hereditary in the family of Defendants 1 to 5 as alleged by them.

P. W. 1 the karnam of Balilpadu deposed as follows:

Sanyasi and Mahalakshmi were doing dancing services in the Plaintiff temple. They and members of the''ir family were doing service for the last 40 years. Prior to them, some Gunturi family was doing service in the temple. Manikyam (Defendant 1) is the daughter of Sanyasi. She has also sisters. Defendant 5 is the son of Sanyasi, who is the son of Seshachalam. Mahalakshmi is the daughter of one Venkatarayudu. Defendant 2 is the sister of Mahalakshmi. Defendant 3 is the brother of Mahalakshmi who has other sisters and brothers and they have children. They are engaged in other occupations.

P. W. 3 the stanachari of the temple for the last 45 years gave the following evidence:

The first woman and man that used to do dancing service in the above temple to my knowledge were Gunturu Manikyam and Venkataratnam, respectively. They used to get a dancing party doing dancing service. They did service to my knowledge for two years. Neither they nor others who came alter them were called Devadasis. After they gave up service, nobody rendered service for 1& year. Then Saride Seshachalam and her brother Venkatarayudu who came from Kaladhari, used to render dancing service in the temple. After their death, the trustee Dronamraju Suryanarayana took an agreement from one Sanyasi and Mahalakshmi as per the original of Exhibit A-8. I attested it. They used to get a party of eight in all. Plaintiff and their family members were not sufficient to make the number and they used to get outsiders. Mahalakshmi is the daughter of Venkatarayudu. Venkatarayudu has daughters who were not doing service, but were engaged otherwise. Sanyasi is the son of Seshachalam. Seshachalam had daughters who were not doing service.

The trustee or manager of the temple was making arrangements from time to time for the performance of the dancing service in the temple and remunerating the persons rendering the service by the produce of the lands in suit. Though the produce of the lands was utilised by the temple trustee or manager for remunerating those who performed dancing service from time to time the lands themselves did not belong to them but only to the temple. This was evidently the reason why the Government when it enfranchised-the inam from the condition of service, issued the fresh title deed to the deity.

Exhibit A-2 relates to the proceedings in connection with the enfranchisement of the inam in 1932, In column 5 relating to the description of the inam the entry is: "Devadayam for dancing service".

In'' column 6 relating to "die name of the devadasi and her age", the entry is "no devadasd is the owner of die land". Under column 8 relating to the name of the temple for, die service in which die inam was granted or continued, the entry is "Sri Madanagopaluswamy temple of Ballipadu village", The extent of the inam lands to, be enfranchised is given as 19 acres 85 cents and die assessment as Rs. 69-8-0. In column JS, the following remarks of the Collector are found:

An extent of 19 acres 85 cents has been set apart for die dancing service in the temple mentioned in column 8 and the trustee of the temple has been paying the produce on this land to the working incumbents. As die devadasis are not the owners of the land, die inam may be enfranchised without the imposition of the quit-rent and a title deed in lorni No. 3 may be issued to die manager for die time being of the temple of Sri ''Madanagopalaswamy, The present manager is Dronamraju Suryanarayana Sarma of Ballipadu village.

The inam was enfranchised from the condition of service and a fresh title deed was issued in the name of die temple by order of the Inam Com-''missioner, dated 10th July, 1932.

The Court below has not attached due weight to the enfranchisement of die service inam by die Government in 1932 and has not realised the effect of such enfranchisement of die rights of the fresh grantee in the lands that constituted die emoluments of the office. Rasa Koundan and Another Vs. Janaki Ammal and Another, related to a devadasi service inam which was enfranchised by die Government, die enfranchisement being followed as in the present case, the grant was of the land and not merely of die melwaram and the tenure attached to die land. Satyanarayana Rao, J., observed:-

The Government, therefore, by the enfranchisement proceedings of 1931, disannexed the inam, that is, both die warams, from the service to which they were subject up to that date, the result of which was to place the land at the absolute disposal of the Government. They could have done anything with needier granted the kudiwaram and the melwaram to some other person or might have continued the kudivaram in die previous holder, but subject to the payment of quit rent,

a In the case or service inams granted or recognise and confirmed by the Government, the legal theory og the common law has been that die ownership rests with die Government, die office-holder merely enjoying the income as his emoluments or wages. The right of the office-holder to the enjoyment of the usufruct of: the land is co-extensive with the duration of- tenure of his office. If, therefore, the office is detached from the land and there is an enfranchisement of die service inam, it has die effect of a resumption and a regrant to the person named in the fresh title-deed. The power of the Government to dispense with the service, if no longer required and resume the service inam has always been assumed to exist.

So long as the land is allowed to be enjoyed as remuneration for the performance of the duties of the office, the office-holder has not got the full dominion veer it and cannot alienate it. If he alienates the land, the Government is entitled to resume die inam. The enfranchisement and re-grant under a fresh title deed extinguish die antecedent rights of die service holders or dose claiming tinder diem. Applying diese principles to the present case, the temple became the absolute owner of die suit lands as a result of the enfranchisement and die issue of a fresh title deed in its favour in 1932 as evidenced by Exhibit A.

It may be observed in this connection that die policy of the Government in connection with enfranchisement of inams was that long possession held by an inauidur should not be disturbed and that the kudiwaram should be continued in the previous holder subject to the payment of quit rent. See Section 44-A (1) of Madras Act II of 1927. In the present case, however the persons who were rendering dancing service in 1932 were found to hive been recendy entertained by the temple audiorities and their possession of the lands was that of lessees under a temporary arrangement of recent origin. Hence, the fresh grant of the land after enfranchisement was made to die temple and not to dose who were rendering devadasd service at the time.

Strong reliance is placed on behalf of die Defendants on Exhibit A-8, dated 25th January, 1922, entered into between the dine trustee of die temple and two persons named Sradi Sanyasi and Saride Mahalakshmi who belonged to different families and who then took up dancing service in the temple. Exhibit A-8 provides for the payment of a "Naphain" worth Rs. 1,100 per annum to the two persons for rendering "m''elam'''' service in the temple along with six other persons to be provided by them on the occasions of the weekly, fortnighdy, mondily and order festivals in the temple. These persons were to be at liberty to give up the service after dire months'' notice.

If they carried on personal cultivation of the ands put in their possession they agreed to execute a kadapa in favour of the trustee. They agreed to take the income of the service inam lands of die extent of 19 acres 85 cents acknowledged to belong to die deity, the said income to be paid to diem by die trustee on the 15th day of Phalguna each year. These two persons sued the trustee in O. S. No. 261 of 1929 and O. S. No. 28 of 1935, D. M. C, Tanuku, for die remuneration due to them for several previous years. In O. S. No. 28 of 1935 a compromise decree Exhibit A-3 was passed on 27th Feburary, 1937 under which they agreed to forego die arrears of remuneration for 1934-1935 to 1936-1937 and die balance of the decree amount in O. S., No. 261 of 1929. The trustee agreed to execute and deliver a fresh agreement to the effect that so long as they performed the services properly they should not be removed from service.

They also agreed to obtain a cowle from die trustee and enter into possession" of the inam land of the extent of 19 acres 84 cents executing a proper kadapa in favour of the trustee and enjoy the produce so long as they rendered service. It was further provided that if the trustee removed them from service contrary to the terms of Exhibit A-3, they should be paid 250 bags of paddy at the current market value. In O. P. No. 47 of 1937 in the District Court of West Godavari, to which the trustee of the temple and these two persons (Respondents 31 and 68) were parties there was again a compromise'' Exhibit B-1, dated 28th November, 1941, die material terms of which were:

The Respondents agree that the lands mea Tinder the schedule annexed to this petition (items ; 28 to 32 of the main, petition B schedule) belong to the deity absolutely and that they have no manner V. of right or interest in them.

That so long as the Respondents, 31 to 68 perform their duties properly, the Petitioner or his successors in office shall not have any right to remove if them.''

That the Respondents 31 and 68 shall execute '' a lease deed in favour of the Petitioner or his successors in office for the properties mentioned in the schedule annexed hereto and the Respondents 31 and 68 shall enjoy the whole of the produce of the lands in proportion of half for Respondent 31 and half for Respondent 68 in lieu of their wages so long as they properly render the service. The 32nd Respondent is only a tenant of the 68th Respondent and has no k right to the property.

The Respondents 31 and 68 shall pay the taxes on the lands mentioned in the schedule so long as they are not removed from office.

It will be observed that in Exhibits A-8, A-3 and f B-l Sanyasi and Mahalakshmi purported to act only for themselves and not as representing their files or ''''successors", whatever those expressions might mean, with reference to persons in their position. Nor were these agreements intended to be operative in any event beyond the life-time of the two persons. Indeed it was only so long as they were personally fit and willing to render service that they could take advantage of the agreements. They had no interest in the land which belonged to the temple and were entitled to its produce in equal moieties as wages for their service.

Sanyasi died some time before May, 1943. Thereafter Mahalakshmi and Manikyam claiming to be a daughter of Sanyasi took possession of the lands. -Exhibit B-4, dated 1st May, 1943, is a notice given by the Executive Officer of the temple to these two persons to the effect that he had been directed by tire H. R. E. Board to take possession of the lands and pay them a monthly salary. Exhibit B-5, dated 3rd May, 1943, is their reply to the effect that the trustee had no right to the possession of the lands so long as they were performing the service properly. Mahalakshmi the survivor of the two persons who were parties to the agreements Exhibits .A-8, A-3 and B-l also died somewhere in 1947 and the Executive Officer of the temple called upon the persons in possession of the lands to surrender possession to him by a fresh notice, dated 12th August, 1947. Manikyam the daughter of Sanyasi and Neolachalam a sister of Mahalakshmi gave a reply Exhibit A-5, dated 15th September, 1947, stating that as they were performing services properly they could not be ''deprived of the possession of the lands and that in any event the value of 250 bags of paddy should be ''paid to them before eviction as per Exhibit A-3. The. Executive Officer then filed O. P. No. 3 of 1948 on the file of the Court of the District Judge, West Goda-Vari u/s 78 of the Madras Religious Endowments Act (2 of 1927; for recovery of possession of the suit lands imp leading all persons who alleged some kind of relationship to Sanyasi and Mahalakshmi and also the tenants in occupation of the lands. The learned District Judge dismissed O. P. No. 3 of 1948 by his order Exhibit A-6. dated 13th August, 1948, on two grounds (1) that the certificate of the Hindu Religious Endowments Board on the basis of which O. P. No. 3 of 1948 was filed had been issued without notice to the Respondents and (2) that the only remedy of the Executive Officer of the temple was to apply to the Government to direct the Collector to (ix the rent payable on the lands. Thereafter, the Executive Officer filed the present suit for declaration of the title of the temple and recovery of possession of the lands.]

It was argued for the Respondent that the order of the District Court in O. P.- No. 3 of 1948 had become final and that the suit for recovery of possession was not maintainable. Attention was drawn to paragraph 5 of the written statement of the Defendants and to the relevant passages in the prior agreements Exhibits A-8, A-3 and B-l wherein the title of the temple to the lands was admitted and it was urged that the prayer for declaration of die title of the deity to the lands was otiose, the only real and effective relief sought, being recovery of possession of the lands which was no longer available to the Plaintiff after the adverse order in O. P. No. 3 of 1948. It is a little surprising that this argument found ready and complete acceptance from the Court below. A decision of the Rangoon High Court dealing wide the effect of an order in insolvency proceedings and an early decision of the Calcutta High Court dealing with the effect of a decision in proceedings u/s 26-J of the Bengal Tenancy Act of the nature of a tenure, were relied upon for the position that the order Exhibit A-6 made by the District Court u/s 78 of the Hindu Religious Endowments Act was conclusive against the Plaintiff and barred the suit. As the contention was seriously pressed before us, we are obliged to deal with it.

We are concerned with Section 78 as it stood in 1948 and 1949. It is unnecessary to quote the* section which is now familiar. The proviso to Section 78 runs thus "Provided that nothing contained in this section shall bar the institution of a suit by any persona aggrieved by an order under this section for establishing his title to the said property." The origin and subsequent history of S. 78 have been fully dealt with in the judgment of Subba Rao J., (as he then was) in Prattipati Dandaiah and Another Vs. Nori Venkatrama Dikshitulu, Managing Trustee of Sri Brahmeswaraswami Temple at Vathcharukur and Others, , and we need only state that the proceeding under S, 78 is of a summary character and that an order of the Court made under that section, while it is not open to appeal, is liable to be. questioned and set aside in a regular suit instituted in a civil Court by any person aggrieved by the order, be he the Executive Officer, Trustee, ex-trustee, office-holder or ex-office-holder or servant or ex-servant of the temple. It was argued that it was only the question of title and not the question of possession that could be agitated in a suit under the proviso to Section 78. This will be reducing the proviso to a farce for it avails a person nothing to get an abstract declaration of his title to property if he to for ever precluded from getting into its possession and enjoyment. The proviso to Section 78 is analogous to the provisions of Order 21, Rule 63 and Rule 103 of the Code of CPC The expression ''title'' in the 1 proviso to Section 79 includes) the right to the possession.

of the property which right has been denied to the Plaintiff by. the. order u/s 78 of the Act. Section of the Act provides for a summary investigation as distinct from a full and thorough trial of the ultimate right. The proviso to S. 78 allows a suit for the establishment of title or right on which the Plaintiff bases his. claim to the possession of the property from which he has been dispossessed or possession of which has been denied to him by an order u/s 70 of the the Act. The objection to tlie trial of the suit on the ground of res judicata by reason of tlie decision in O. P. No. 3 of 1948 is devoid of substance and is overruled.

The further question is, whether the Plaintiff''s remedy is only by way of an application u/s 44-A (2) of Madras Act (2 of 1927) and whether the suit for possession is not maintainable as contended by the Respondents. We have already discussed the nature of the service inam and the effect of the enfranchisement by the Government and in that connection we have held that the service inam con-, sisted of lands falling within Section 44-A (1) of the Act. Exhibit A-1, the extract from the Inam Fair Register already referred to shows that the inam, though of ancient origin, was continued by the Government and Exhibit A-2 shows that the right of resumption vested in and was exercised by the Government. Sec- tion 44-A ''(2) does not apply to service inams falling within: Section 44A (1). Section 44-A (2) contemplates cases of permanent grants for doing devadasi service made by zamindars after the permanent settlement or by ryotwair proprietors or by the temples themselves. In such cases the Legislature appears to have thought that the devadasi who was freed from the obligation to render service and allowed to retain the land should pay a rent to be fixed by the Collector to the temple concerned. Section 44-A (2) also contemplates cases where the grant by way of remuneration for services is of a permanent nature though not made or confirmed or continued by the Government as u/s 44A (1). In those cases also succession to the office or service is governed by the personal law of the office-holder or service holder or by the personal law as modified by legis lation. The land which is the emolument or pro perty annexed to the service follows the service and the right to the enjoyment of the land rests upon the right to the office the succession io which de volves according to the personal law of the service holder. In the case of service inams falling within Section 44A (2) the Legislature thought that it would bo fair and equitable that the devadasi who was freed from her obligation to do service should be allowed to enjoy the rent of the land as fixed by the Collector during her life-time and thereafter the benefit of the rents should go to the temple for whose bene fit the service was intended. Both Secttion 44-A (1) and (2) contemplated service inam grants of a permanent and heritable ''character, the office and the land de volving according to the personal law of the parties.

The arrangements between the trustee or Executive Officer of the temple and Sanyasi and Mahalakshmi were contractual and intended to last so long as they were fit for the duties and in no event beyond their life-time. the very fact thati in there were successive arrangements between them from time to time under Exhibit A-8 of 1932, A-3 1837 and B-l of 1941 with varying terms and conditions shows that they were not of a permanent character. After the enfranchisement of the service inam in 1932, the. temple acquired an absolute title to tlie lands freed from the obligation of service and it was free to deal with the lands as it pleased. A permanent alienation of temple lands by a trustee is prima facie a breach of trust and no presumption can be made in favour of a breach of duty or mis conduct. Nainapillai Marakayar v. Ramanathan Chettiar ILR 47 Mad 337 : AIR 1924 PC 65, Under Exhibits A-3 and B-l which were subsequent to tlie enfranchisement, the temple trustee or Executive Officer did not make a grant of the and or its produce, in perpetuity to Sanyasi and Mahalakshmi so as to be heritable by their heirs-at-law. The Court below has assiduously tried to prepare a pedigree on unconvincing evidence. On the crucial point as to whether Sanyasi was devadasi qualified for the office or whether he was a male there is a hapless conflict of evidence. In Exhibit A-3 Sanyasi is described as the daughter of one Seshachalam while P. W. 1 and D. W. 2 who have personal knowledge, agree that Sanyasi was the son and that is the description in the plaint. There is nothing in Exhibits A-8, A-3 and B-l to suggest that Sanyasi and Mahalakshmi were entering into an arrangement on behalf of the members of their families or as representing them, as alleged by the Defendants. On the other hand, they agreed to supply eight persons for the melam service in the temple and share the re moderation payable according to the terms of Exhi bit A-8. The arrangement was a contract for the supply of the service or labour of eight qualified per sons for a stipulated remuneration. Exhibit B-l is the last of such arrangements. It will be seen that under Exhibits A-8, A-3 and B-l, Sanyasi and Maha lakshmi agreed to execute lease deeds in favour in the temple for the lands and appropriate rent towards the wages due to them for their service. Exhibit A-8 refers to a lease given by the temple to Sanyasi and Mahalakshmi. Exhibit A-3 also refers to a cowle by the temple and a kadapa by Sanyasi and Maha lakshmi in respect of the suit lands. In Exhibits A 8, A3 and Bl the title of the deity as the owner of the lands is clearly and unequivocally admitted and in Exhibits A8 and A3 the relationship between the deity and Sanyasi and Mahalakshmi is admitted to be that of landlord and tenant. In these circum stances it is difficult to regard Exhibits A-8, A-3 and B-l as service inam grants enuring for the benefit of the heirs of Sanyasi and Mahalakshmi or for the members of their families. Exhibits A-8, A-3 and B-l are contractual arrangements which, at best, would last only during the life-time of Sanyasi and Mahalakshmi. Where performance of a contract is required to be in person and the personal qualifications of the promisors are the consideration for the contract, the death or disablement of the promisors discharges the contract and frees the other party, from liability. The contract here was one for actual personal services and its performance by the promisors has become impossible and the contract has therefore become void. None of the. agreements provide for the continuance of the service of the enjoyment of the rents of the lands by the heirs of Sanyasi and Mahalakshmi or the other members of the families."

There is no agreement in writing between the'' Plaintiff and Defendants 1 to 5 as regards the terms on which they or any of them should render service. The male Defendants cannot be degauss. It is extremely doubtful whether even the female Defendants who are two in number could be described as devadasis. It is however clear from the statement in paragraph 4 of the plaint and Exhibit ''B-3 that Defendants one and two were engaged by the Plaintiff to do service in the temple after death of Mahalakslrmi which happened sometime after 1943 and before 1947. (see Exhibits B-4 and A-5) and that . Defendants one and two were allowed to enjoy the produce of the lands for a few years. If there was a grant by the trustee of the temple lands or of any .interest in the lands in favour of Defendants one and two, it should have been evidenced by a deed, but none is, forthcoming. The arrangement was therefore a temporary one and was a contract of service terminable at the pleasure of the parties, or on reasonable notice and remunerated by the produce of the lands. u/s 3 of the Madras Devadasis Act (31 of 1947) the dedication of a woman as a devadasi whether before of after the Act is declared unlawful and dancing in the precincts of a temple or in the presence of the deity is declared unlawful. There is no doubt a saving clause in Section 3 (1) of the Act to the effect that the operation of Section 44A of the Madras Hindu Religious Endowments Act (2 of 1927) and the rights to which a devadasi is entitled under that section are saved. We have held that Section 44A of the Act does not apply and the Defendants are not within the protection of that section. Any arrangement entered into between the Executive Officer and Defendants one and two for rendering service by the latter in lieu of wages or remuneration would become void when Madras Act (31 of 1947) came into force and made the rendering of dancing service in a temple an offence punishable u/s 4 of that Act - see Section 56 of the Contract Act.

For these reasons we reverse the decree of the Court below in O. S. No. 65 of 1949 and grant a decree for possession of the properties described in the schedule to the plaint in favour of the Plaintiff. The suit is remanded to the Court below for an enquiry into the amount of mesne profits claimed by the Plaintiff and the passing of a final decree With reference to the profits ascertained to be payable to the Plaintiff by all or any of the Defendants. The Appellant will have his costs both here and in fee- Court below.

A.S.No. 1040 of 1952.-It is not proved that there was any arrangement between the Plaintiffs and the Executive Officer of the temple under which the Plaintiffs could claim the rent paid by the second Defendant to the Executive Officer of the temple. According to the written statement of the Executive Officer only the third Plaintiff and one Saride Manikyam,. not a party to the suit, rendered dancing service in the temple under a temporary arrangement. The first Plaintiff is a minor and Plaintiffs two and four are alleged to be members of the (family of Sanyasi and Mahalalcshmi. In our judgment in A. S. No. 604 of 1951 we have held that Sanyasi and Mahalakshmi had no heritable interest Jin the lands. In these circumstances, it must be held that the Plaintiffs have not established their ''right to the amount claimed in O. S. No. 72 of 1950 The is allowed and the suit is dismissed with costs here and in the Court below.